Shared Parental Leave (SPL) is a scheme that provides an entitlement for eligible employees to take leave from work in the first year after a child’s birth or the placement of a child with them for adoption.
The government has published two sets of useful guidance for employers, details of which can be found by clicking on the below links:
Eligible parents can, if they choose to do so, share up to 52 weeks of leave (being up to 39 weeks of paid leave and 13 weeks unpaid) after the birth or adoption of a child. Parents can take their leave and pay in a more flexible way, either in blocks or staggered throughout periods of work. Essentially, SPL allows a mother or primary adopter to end their maternity or adoption leave early, or commit to giving up a portion of their leave at a future date, and effectively transfer the untaken portion to the other parent to take it as SPL (or share the leave as SPL).
SPL is optional and parents do not have to use the SPL system. The default position on the birth of a child is that the mother is permitted 52 weeks of maternity leave, including compulsory maternity leave. The default position on the adoption of a child is that the primary adopter is entitled to 52 weeks of adoption leave. Unless parents qualify for and opt into the SPL scheme, the other parent will only qualify for two weeks of paternity leave and pay (statutorily).
Who can take SPL?
Partners are eligible for shared parental leave if they are the partner of someone who:
- gives birth to a baby;
- uses a surrogate to have a child;
- adopts a child; or
- fosters a child who they plan on adopting.
In relation to births, where the mother is an employee, they may reduce their statutory maternity leave so that they can take SPL, provided the other parent is or has recently been in paid work. If the other parent is an employee with qualifying service, they may also take SPL. Where the mother is not an employee but is entitled to Statutory Maternity Pay (SMP) or Maternity Allowance (MA), they will not be entitled to SPL but the other parent may be entitled if they are an employee with qualifying service and the mother reduces their SMP or MA period early.
In relation to surrogacy cases, if the mother is an employee entitled to statutory adoption leave they may reduce it to take SPL, provided their partner is or has recently been in paid work. If the other parent is an employee with qualifying service, they may also take SPL. Where the mother is not entitled to statutory adoption leave but is entitled to statutory adoption pay, they will not be entitled to SPL but the other parent may be entitled to SPL if they are an employee with qualifying service and the mother reduces their statutory adoption pay period early.
In relation to placement for adoption (including fostering for adoption placements), where the adopter is an employee entitled to statutory adoption leave, they may reduce it in order to take SPL, provided the other parent is or has recently been in paid work. If the other parent is an employee with qualifying service they may also take SPL. Where the adopter is not entitled to statutory adoption leave but is entitled to statutory adoption pay, they will not be entitled to SPL. However, the other parent may be entitled to SPL if they are an employee with qualifying service and the adopter reduces their statutory adoption pay period early.
To meet the eligibility criteria parents must give up some of their individual maternity or adoption leave and/or pay. This can be done either by taking less than the 52 weeks of maternity or adoption leave and using the remainder as shared parental leave, or by taking less than the 39 weeks of the maternity/adoption allowance and using the rest as statutory shared parental pay with the other parent.
The “other parent” referred to above means (in the case of birth) either the biological father or the mother’s spouse, civil partner or partner who will be sharing the main responsibility for the child with the mother. In the case of adoption placements, it means the spouse, civil partner or partner of the primary adopter who will be sharing the main responsibility for the child with the adopter.
Do both parents need to be employees?
No, but only an employee can take SPL.
The policy behind the scheme (as stated by the government) is that both parents must be economically active: for example, in a birth case, where one parent seeks SPL from their employer, their partner must have worked in an employed or self-employed capacity in at least 26 of the 66 weeks immediately before the 15th week before the EWC (Expected Week of Childbirth), earning on average at least £30 a week based on any 13 of those weeks.
How much do parents get paid for SPL?
The statutory position is that SPL is paid at a rate £172.48 per week, or 90% of the recipient’s average weekly earnings, whichever is the lowest of the two.
Employees can put in place a contractual scheme which is more generous than the statutory scheme. In accessing a contractual scheme which is more favourable, the employee does not forfeit their statutory rights in relation SPL. However, they cannot exercise their statutory right and contractual right separately but can take advantage of the more favourable right.
What are the employee’s terms and conditions during SPL?
As is currently the case during a period of statutory maternity, paternity or adoption leave, during a period of SPL, an employee is:
- with the exception of any terms as to remuneration (sums payable to the employee by way of wages or salary), entitled to the benefit of all their terms and conditions of employment as if they had not been absent;
- bound by any obligations arising under their terms and conditions, except for those which are inconsistent with their right to be absent from work.
Therefore, with the exception of pay, all the employee’s other benefits (such as the accrual of contractual annual leave, health club membership, permanent health insurance or use of a company car) will continue.
The employer and absent employee are entitled to make reasonable contact with each other from time to time during a period of SPL, for example, to discuss an employee’s return to work, without bringing the period of leave to an end.
An employee may work for up to 20 days during the SPL period without bringing their leave to an end . These days are referred to as “shared parental leave in touch” (SPLIT) days. These are separate and additional to any KIT days that a mother has on maternity leave.
For these purposes:
- Any work carried out on any day constitutes a day’s work; and
- Work means any work done under the employee’s contract of employment and may include training or any activity undertaken for the purposes of keeping in touch with the workplace.
An employer cannot require an employee to attend work, nor can an employee insist on attending work during a period of SPL. Doing a day’s work under these provisions does not have the effect of extending the length of a period of SPL.
Can an employee on SPL be subject to redundancy?
Where an employee is taking SPL, and “it is not practicable by reason of redundancy” for them to remain employed under their existing contract, but where there is a suitable alternative vacancy with the employer, the employer’s successor, or an associated employer:
- The employee is entitled to be offered that suitable alternative before the end of their existing contract; and
- The employee’s employment under a new contract of employment must take effect immediately on their previous contract coming to an end.
To be a suitable alternative vacancy both of the following criteria must be met:
- The work must be of a kind which is both suitable in relation to the employee and appropriate for them to do in the circumstances; and
- The provisions about the capacity and place in which the employee is to be employed, and the other terms and conditions of the employment, must not be substantially less favourable than if the employee had continued to be employed under their previous contract.
If the employer does not comply with this requirement, the employee may have a claim for automatic unfair dismissal. Employees on SPL are prioritised over other employees who are also at risk of redundancy in the same way that employees on maternity or adoption leave are prioritised. If no suitable alternative role is available within the business, a parent on SPL can lawfully be made redundant provided that the reason for the redundancy is not connected to their SPL.
What is the uptake of SPL?
Published government figures from the 31st of March 2023 reveal the actual number of people who have taken shared parental leave since it was introduced at the end of 2014 under the Children and Families Act. The figures show how the number of people taking shared parental leave each year between 2015/16 and 2021/22 has increased at a steady rate. The number of men taking up shared parental leave almost doubled, increasing from 5,100 up to 9,800, and for women, the number nearly tripled from 1,100 to 3,200. However, despite these improvements, the total number of men and women taking shared parental leave in 2021/22 remained low, at only 13,000. Since being questioned on the topic of shared parental leave in 2019, the government has hinted towards a possible reform regarding shared parental leave.
If you would like more information about any of the issues raised in this article or any other aspect of employment law, please do not hesitate to contact at 029 2034 5511 or firstname.lastname@example.org